CONTESTING THE VOTE: THE LAWYERS

CONTESTING THE VOTE: THE LAWYERS; Trusted Litigator For Republicans

By NEIL A. LEWIS

Published: December 1, 2000

WASHINGTON, Nov. 30—
When he argues Gov. George W. Bush's case before the Supreme Court on Friday, Theodore B. Olson will be performing the latest assignment in the informal role he has come to play in Washington, that of the most trusted appellate litigator of the Republican establishment.

While Mr. Olson will be arguing on behalf of a man he contends is a president-to-be, Governor Bush is not his first presidential client.

He represented President Ronald Reagan in the investigation by an independent counsel into the Iran-contra affair, the secret White House effort to sell arms to Iran and use profits to finance the contra rebels in Nicaragua.

Mr. Olson's journey to prominence in the capital began when he was a protege of William French Smith, Mr. Reagan's first attorney general. Mr. Olson had worked with Mr. Smith at the Los Angeles law firm of Gibson, Dunn & Crutcher. When Mr. Smith came to Washington, he brought along to the Justice Department two of his favorite young assistants, Mr. Olson and Kenneth W. Starr. Mr. Olson has remained strong friends with Mr. Starr, until recently the Whitewater prosecutor.

Mr. Olson found himself installed as head of the Office of Legal Counsel in the Reagan Justice Department, the office that researched the constitutional implications of the administration's policies and legal actions. Heading the office was the closest thing inside an administration to being its resident constitutional law professor.

When he left the administration and returned to Gibson, Dunn, he developed an appellate practice that was modeled on the Office of Legal Counsel that has since flourished.

While he is not as well known nationally as Prof. Laurence H. Tribe, his adversary on Friday, Mr. Olson is wildly popular among conservative law school students who know him from his years of helping lead the Federalist Society, a Washington-based network of conservative law students and lawyers.

In that world, an opportunity to be hired by Mr. Olson is valued almost as highly as a clerkship with one of the conservative justices.

He and his wife, Barbara, are a major power couple among Washington's conservative set. Mrs. Olson is a former federal prosecutor who worked for House Republicans in their investigation of the Clintons.

She was a regular legal commentator on television in the Clinton impeachment, and wrote ''Hell to Pay: The Unfolding Story of Hillary Rodham Clinton'' (Regnery 2000), a book harshly critical of Mrs. Clinton.

In the 13 cases he has argued before the Supreme Court, Mr. Olson won 8 and lost 4; one was re-argued by another lawyer.

''What I love about this kind of work is the rigor of standing up there and trying to advance your case while answering questions from all sides,'' he said in an interview about his practice.

He is noted among fellow lawyers for his intellectual suppleness and gentle manner before the justices. In one of his most difficult cases, he failed in 1996 to persuade the justices to uphold the right of the Virginia Military Institute, a state-financed college, to exclude women.

He has also fought the University of Texas before a federal appeals court in a successful effort to eliminate affirmative action in its law school admissions. The Supreme Court declined to review the ruling.

Theodore Bevry Olson was born in Chicago on Sept. 11, 1940. He graduated from the University of the Pacific and Boalt Hall, the law school at the University of California.

In preparing for arguments, Mr. Olson said he had a fairly set regime in which he held three moot court sessions, practices in which a handful of fellow lawyers act like the justices and pepper him with questions.

Before he became an experienced practitioner before the court, he was a party in a major Supreme Court case, Morrison v. Olson.

Mr. Olson had unsuccessfully challenged the constitutionality of the law that allowed for the appointment of independent prosecutors to investigate high-level administration officials.

He was being investigated for giving possibly misleading comments to a Congressional committee when he was a Justice Department official about an environmental program. He lost the 1988 case, but after the court upheld the statute, the independent counsel, Alexia Morrison, announced that she had concluded there had not been any intent on Mr. Olson's part to mislead Congress and the case against him was dropped.

Mr. Olson has told friends that the 29 months in which he was under investigation was an awful period that has given him sympathy for people confronted with the force of the federal government.

Photo: FOR THE BUSH TEAM: Theodore B. Olson, who once worked in the Justice Department, has argued 13 cases before the Supreme Court. (Associated Press)